White v. Rock, CV-10-5163 (SJF)
| Decision Date | 22 April 2013 |
| Docket Number | CV-10-5163 (SJF) |
| Parties | JOHN H. WHITE, Petitioner, v. DAVID ROCK, Superintendent of the Upstate Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On June 6, 2008, a judgment of conviction was entered against petitioner John H. White ("petitioner") in the Supreme Court of the State of New York, Nassau County (Brown, J.) ("the trial court"), upon a jury verdict finding him guilty of murder in the second degree (N.Y. Penal Law § 125.25(3)), attempted robbery in the first degree (N.Y. Penal Law §§ 110.00 and 160.15(2)) and attempted robbery in the second degree (N.Y. Penal Law §§ 110.00 and 160.10(1))1 , and imposition of sentence. On November 5, 2010, petitioner filed a petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.
On June 13-15, 18, 20-21, 25-26 and 29 and July 16, 2007, a hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), was held before the trial court on petitioner's omnibus motion to suppress to determine the suggestiveness of an identification procedure and the voluntariness of petitioner's statements to law enforcement officers, respectively. At the hearing, Detectives Carl Re ("Re") and Edward Hoctor ("Hoctor") testified on behalf of the prosecution and Detectives Darryl Aiken ("Aiken") and Dean Nicosia ("Nicosia") were called to testify by the defense. The following testimony was given2 :
Re testified that on October 22, 2005, at approximately 9:50 a.m., his supervisor called him into work to investigate the murder of Jose Benitez ("Benitez") at an apartment complex on Hendrickson Avenue in the Village of Hempstead, New York. (H. 26-7; H2. 18, 23). According to Re, he spoke with Benitez's cousin, Caesar Jiminez ("Jiminez"), who told him that he, Benitez and two (2) other cousins, Jose Rosales ("Rosales") and Julio Benitez ("Julio"), were drinking in a vehicle parked in the rear parking lot of 60 Hendrickson Avenue since midnight; that at approximately 6:00 a.m., he gave Benitez twenty dollars ($20.00) and Benitez went to a nearby Stop and Shop store, located on the corner of Fulton Street and Hendrickson Avenue, to purchase more beer; that when Benitez had been gone for approximately ten (10) minutes, he heard agunshot; that he then got out of the vehicle and saw Benitez staggering towards him still holding the beer that he had purchased and being chased by two (2) males, whom he described as "possibly male blacks," approximately the height of the six foot (6') fence and of medium build, dressed in dark clothing with the hoods up; and that he then heard two (2) more shots and saw the two (2) males who had been chasing Benitez turn and flee westbound on the walkway heading toward Hendrickson Avenue, then turn right to head north on Hendrickson Avenue. (H. 27-8; H2. 33-4, 47).
Re testified that a single bullet was recovered from Benitez's body, specifically from his chest. (H. 29).
Re testified that the building at 60 Hendrickson Avenue was canvassed for witnesses. (H2. 40). Jose Palacios ("Palacios"), in apartment 2A, told him that shortly after 6:00 a.m., he heard three (3) shots and that when he looked out his window, he saw a black male, almost as tall as the fence line, dressed in all black and wearing a hoodie, run out of the apartment complex onto Hendrickson Avenue, stoop down to pick something up at the fence, then walk northbound on Hendrickson Avenue. (H2. 41).
On October 23, 2005, Re spoke with April Jones ("April") and her mother Bernice Jones ("Bernice"). (H2. 49-51). April told him that she heard two (2) to three (3) shots and a male voice yelling "ow," but she did not look out the window. (H2. 51). Bernice told him that after she heard three (3) shots, she looked out the window and saw a male wearing a dark hoodie walk with a slight limp alongside the fence of 60 Hendrickson Avenue, then he turned and walked northbound on Hendrickson Avenue. (H2. 51). Bernice only indicated that she saw one (1) person. (H2. 52).
Re testified that on April 16, 2006, he was notified by Lieutenant Farrell ("Farrell") that the Hempstead Police Department had Keith James ("James") in custody for his involvement in a shooting that had occurred earlier that date and that when James "gave up the gun that was used in that shooting [on April 16, 2006]," which had been secreted in the boiler of James's house, he indicated that he had information about Benitez's homicide. (H. 29-30; H2. 102-04). According to Re, when he subsequently spoke with James, James told him that he knew petitioner for several years prior to October 22, 2005; that on October 21, 2005, petitioner had borrowed a .32 caliber Taurus revolver from him; that on October 22, 2005, at approximately 6:00 a.m., he and petitioner drove to the Stop and Shop on the corner of Fulton Street and Hendrickson Avenue in James's mother's vehicle; that when they pulled into the lot of the Stop and Shop, the clerk, Syed Raza ("Raza"), emerged and entered into a conversation with him; that shortly thereafter, petitioner exited the vehicle, stood on the sidewalk, watched patrons exiting the store, motioned to James with a nod of his head, then headed southbound on Hendrickson Avenue; that he continued his conversation with Raza for a short time, then he drove around the block onto Devon Road to pick up petitioner; that when he stopped at the corner, he saw petitioner first walk, then run towards his car; that after petitioner got into the car and they started to drive away, petitioner showed him three (3) spent rounds and said: "I just shot a papi[3 ], I tried to rob a papi, [t]he papi put up a struggle with a case of beer and I shot at him three times;" that petitioner initially held the bullets in one hand and the gun in the other hand, but then he put the bullets back in the gun; that James drove to his house, where he "secured the weapon," then he dropped petitioner off; and that a couple of days later, petitioner told him that the "papi" had died. (H.
30-1; H2. 121, 142-9, 161, 164-65).
Following his interview with James, Re requested that the forensic firearms section of the Nassau County Police Department ("NCPD") test the gun that had been recovered from James's residence on April 16, 2006 and compare it to the slug that had been recovered from Benitez's body. (H. 31-2). On that same date, Detective Sergeant Robert Nemeth ("Nemeth") notified Re that he had compared the bullet that had been recovered from Benitez's body to the .32 caliber revolver that had been recovered from James's resident and "it was a match." (H. 32; H2. 165-66).
On April 20 or 21, 2006, Re notified Nicosia, of the Hempstead Village Police Department, of the forensic test results and that there was a pending warrant for petitioner's arrest for two (2) marijuana charges that had been issued a couple of weeks earlier, and requested that he arrest petitioner if he saw him in Hempstead. (Re: H. 32; H2. 167-70; Nicosia: H2. 371-73). Nicosia testified that on April 21, 2006, at approximately 8:00 a.m., he went in an undercover car to go look for petitioner by checking the areas where he was known to go. (H2. 374-75). Shortly before 2:00 p.m., Nicosia located petitioner leaving the yard area of his mother's residence on 108 Remsen Avenue, walking southbound on the sidewalk on Remsen Avenue and carrying a bag in his hand. (H2. 375-77). Nicosia radioed for back-up, then approached petitioner, who, because he had a history of being an informant for Nicosia, got into the front passenger seat of Nicosia's car without being instructed to do so or handcuffed. (H2. 379-81). Nicosia started "small talk" with petitioner, asking him where he was going, and petitioner showed him that he had shoes in the bag he was carrying and said that he was going to somebody's house. (H2. 380). Nicosia told petitioner that he could take him to the person'shouse to deliver the shoes, but that he first wanted to speak with petitioner, and asked petitioner if he would go to the Hempstead Police Department headquarters with him. (H2. 380). Nicosia drove petitioner to headquarters, where they went into the basement and entered the building through the back garage door. (Nicosia: H2. 382-83). According to Nicosia, prior to bringing petitioner upstairs at headquarters, he handcuffed him, then he brought petitioner to a cell. (H2. 383-84). Someone from the Hempstead Police Department then called the NCPD and told them that petitioner was in custody in the Village of Hempstead. (Re: H. 33; Nicosia: H2. 385). Nicosia then went into petitioner's cell and searched him. (Nicosia: H2. 385).
At Re's request, petitioner was transported to the homicide squad of the NCPD at approximately 2:15 p.m. on April 21, 2006. (Re: H. 33; H2. 179; Nicosia: H2. 385-89). According to Nicosia, petitioner, who remained handcuffed during the ride, was never told that he was under arrest and there was no discussion with petitioner during the ride, with the exception that he was told that he was being brought to the NCPD because a couple of detectives wanted to speak to him. (H2. 387-88). Nicosia testified that petitioner was brought into a room in the corner of the homicide squad and he had no further contact with him, (H2. 389-91).
Aiken testified that on April 21, 2006, he was called to the homicide squad to relieve other detectives that were there that day and he remained there throughout the night and into the next morning. (H2. 319-20). According to Aiken, when he arrived, and for most of the time he was there, petitioner was inside a room with the door closed. (H2. 321-22). However, Aiken testified that although he did not really go up to the homicide squad often, he "bel...
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